Legal principles should be able to stand the benefit of a doubt

It is truly fascinating how diplomats and politicians (misuse) use concepts such as "international law" and "contradiction of international law" by applying bare assumptions.

Martin Blecher,

OpEds Martin Blecher
Martin Blecher
INN: MB

When giving someone the benefit of the doubt, you are believing what they say and taking their word because you, yourself, have some doubt about what happened.

"Now it’s the law. But it’s a law that was never applied." (Luis Moreno Ocamp on Israeli settlements)

"Euronational law has colonized our mindset for long enough. A new framework devoted to solving border disputes and demands for independence is needed, with a view toward the future." (Seth Frantzman)



How can one know if something is against international law if the case itself has never been tested?
It is truly fascinating how diplomats and politicians (misuse) use concepts such as "international law" and "contradiction of international law" by applying bare assumptions.

How can one know if something is against international law if the case itself has never been tested? Better yet, how can one trust a fair test of applying international law when history has proven the presence of bigotry and double standards?

The question about Israeli 'settlements" belongs in the first categorization. The deceased Morris Abram, a member of the U.S. staff at the Nuremberg Tribunal and later involved in the drafting of the Fourth Geneva Convention is on record as stating that the convention "was not designed to cover situations like Israeli settlements in the occupied territories, but rather the forcible transfer, deportation or resettlement of large numbers of people.”

Here we have someone who was involved in drafting the Geneva Convention stating a position clearly contradicting the general assumption of what Israeli settlement is or is not.

Of course international law is not static. It changes, modifies, adapts to fit certain solutions and environments. The amendment of including Israeli settlements in the Geneva convention was a demand from countries like Syria and Egypt when there was a raging debate about ICC:s future. Syria and Egypt now played the role of the international law “regulator/enforcer,” hardly countries that have a flattering history of following the conventions in the first place.

That being said, it brings us to the question about fairness when testing international law principles.

ICC:s former chief prosecutor  Luis Moreno Ocampo, has admitted that the phrasing of israeli "settlements" was inserted at the behest of Egypt and Syria, has emphasized that it was eventually accepted by the 120 states that signed the Rome Statute and says: “Now it’s the law. But it’s a law that was never applied. “

So let us rewind. We have a founder of the Geneva Conventions who speaks about the law's intentions in the first place, we have two dictatorships that invoked a clause about Israeli "settlements" and we have ICC:s former chief prosecutor on record saying that the law on settlements has never been applied.

With this in mind is it even more interesting how diplomats and politicians (misuse) use concepts such as "international law. The discussion on “Israeli” settlements becomes more intriguing given the fact that it is always, in the context, of Israeli settlements, that the Geneva Convention is brought up at all.

What about other countries that have  “settlers”? Obviously, if we were to be consistent with international law, in the event that the law is being tested and contested, this would also be law concerning China, Russia and France (which is supporting Morocco’s occupying policies).

Here you have a problem again. To put it bluntly. China, Russia and France are all part of the so called “Quartet,” the enforcer, that is being highly judgmental and critical of settlement policies while using the praxis as well. You can’t condemn Israel and want to bring them to ICC over settlements while condoning Chinese settlers in Lhasa or Russian intrusion in former Soviet Republics.

That’s not international law. That is bigotry, double standards and borders on anti-Semitism.

Take another great example. The Israeli wall/ security barrier. The basic assumption is that this as a measure is violating international law. The main argument stemming from a verdict from ICJ. But what if this principle would have been tested towards the European separation fence to prevent migration into the EU from countries excluded from it? Also can we, with good conscience, conclude that while Israel’s wall is in violation of international law, the Indian government’s construction of a security barrier along the frontier in the states of Punjab and Rajasthan, of which more than 80 percent of the barrier's planned route was on disputed land, is lawful and in accordance with international law?

Again the question rises of how one can trust a fair test of applying international law when history has proven bigotry and double standards.

It is, as Eugene Kontorovich has shown,  fascinating how politicians and diplomats joyfully play with words. When the French ambassador to the United States refers to the unlawfulness of doing business with Jewish "settlements," clearly he must also have in mind French business in Western Sahara as part of this unlawfulness.  Right? Or worse, can it be that the French ambassador to the United States' knowledge of what international law states is non-existent and he is making baseless assumptions?

The EU is labelling goods from the "West Bank" but lodges an appeal on labelling Moroccan goods from Western Sahara. 

Jerusalem Post's Seth Frantzman, wrote in Time that it is time to liberate the world from international law: “Despite the recognition that colonialism was wrong and the critiques popular in most circles of orientalism, racism, white supremacy and eurocentrism, for some reason every colonial centerpiece has been torn down except the European-drawn borders and the international law that governs them.”

Another excerpt from Seth Frantzman, which is useful to bear in mind when talking about international law is: “What we call “international law” in fact means the supposed right of Europeans to draw almost all the world’s borders and then to decide – after they decolonized – that no country may attempt to redraw, or secede, from those borders. In many cases these borders have become a deathmatch-like cage of suffering, dictatorship and even mass murder. Often minority tribes, religious or ethnic groups, forced to live in a state they do not want to be a part of, are subjected to mass slaughter, as happened in South Sudan until they were finally allowed a referendum, and which happened to the Kurds in the Middle East. Euronational law has colonized our mindset for long enough. A new framework devoted to solving border disputes and demands for independence is needed, with a view toward the future.”

Israel´s defenders but also its fiercest critics will do themselves good and advance justice by asking the following:

1) What kind of legitimacy can international law possibly give to Israel?

2) What are the odds for a duplication of a Dreyfus-trial if Israel is put on the stand over “international law abuses”?

Martin Blecher is a writer and lecturer on Swedish-Israeli relations




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